Joe Arpaio, the disgraced former sheriff of Maricopa County, Arizona, doesn’t just belong in jail, he belongs under it. He could have spent up to six months there after a judge found him guilty of criminal contempt for violating a court order to not racially profile brown drivers, but he can thank his lucky stars that a white supremacist like Donald Trump is in the White House, and there was no way he was going to let a loyal surrogate beloved by deplorables get locked up for violating the rights of brown people.
So, Joe got his pardon and avoided jail. But, there was one more thing Joe wanted and hasn’t so far been able to get, and the ongoing litigation over it could have vast repercussions on other fronts, particularly into Robert Mueller’s Russia investigation. “After his pardon, Arpaio asked the court to vacate the contempt judgement against him. The district court halted its proceedings against Arpaio but refused to clear his record. So Arpaio appealed”:
In the coming months, the 9th Circuit Court of Appeals will have an opportunity to review the case and potentially overturn a presidential pardon for the first time in more than a century.
The Trump presidency is already testing the outer bounds of the pardon power in ways never contemplated during past administrations. The multiple criminal investigations into Trump’s campaign, businesses associates, and perhaps the president himself have raised new questions about the scope of the pardon power. Can Trump use it to thwart investigations against him? Could he pardon himself? In Arpaio’s case, Trump has “pardoned someone specifically for flouting judicial authority,” says Lisa Kern Griffin, a professor at the Duke University School of Law, “which may be precisely what he is going to expect some of his associates to do in order to protect him.”
Just last month, Trump pardoned another disgraced hack, former Dick Cheney chief of staff Lewis “Scooter” Libby, who was convicted of lying under oath in 2007. Who else more recently have pled guilty to making false statements and agreed to cooperate with Mueller, according to Daily Kos’s Mark Sumner? Michael Flynn, Rick Gates and George Papadopoulos.
“If the courts uphold the pardon,” Pema Levy reports in Mother Jones, “they could send the message that people caught up in the Russia investigation can refuse to cooperate with court orders without penalty.” If they can get away with it, like Arpaio has done and shameless, uncooperative Trump officials like Paul Manafort probably hope to do, what’s to stop them and Trump from giving it a shot?
“Some scholars see a different problem with the Arpaio pardon,” Levy continues. “It nullified the role of the courts to protect Americans’ civil rights. The pardon power, as laid out in the Constitution, is virtually unlimited. But in the case of Arpaio’s pardon, some prominent constitutional scholars believe the president exceeded his authority by overriding the constitutional rights of Arpaio’s victims”:
If the status quo stands, critics of the pardon argue, Trump can essentially nullify constitutional rights that conflict with his agenda and immunize officials who carry out his unconstitutional policies. As constitutional scholar Laurence Tribe and civil rights attorney Ron Fein, who participated in a brief opposing the pardon, explained in a Washington Post op-ed, desegregation after Brown v. Board of Education happened because the courts enforced their orders with the threat of contempt against politicians vowing “massive resistance.” If the president had pardoned local officials who refused to desegregate schools, that would have nullified the civil rights of African Americans. Likewise, it’s easy to see the Arpaio pardon as a signal to like-minded law enforcement officials that implementation of the administration’s immigration agenda will come with a pardon for unconstitutional enforcement. As Redish warned in his op-ed, what’s to stop Trump from promising individual officials that he will pardon them if they violate court orders?
Arpaio’s crimes haven’t just cost his victims their freedom and civil rights, they’ve got Maricopa County voters tens of millions of dollars in legal fees and settlements. Just last September, Maricopa County supervisors approved a $1 million fund to pay Arpaio’s many victims. County taxpayers have “so far have paid nearly $70 million because of the lawsuit. Further, an additional $26 million is expected to be spent in 2018 on legal fees, new technology, training and a monitor to oversee the compliance efforts”:
The pardon power looms particularly large over the Trump presidency because it’s seen as a possible escape hatch from prosecution by special counsel Robert Mueller. Griffin says of the Arpaio pardon, “I think it’s not unconnected to the president’s ultimate strategy to the investigations against him.” Trump’s pardon in April of Scooter Libby, who was convicted of lying to federal investigators and obstructing justice during another special counsel investigation, amplified this concern. If Arpaio’s pardon is upheld, Trump will feel freer to instruct witnesses not to testify against him and then pardon them when they’re held in contempt of court or perjure themselves. But if the 9th Circuit limits the pardon power, the question will almost certainly head to the Supreme Court for one of its biggest decisions of the past century on the separation of powers.